The industry has seen an influx of claims for delays and cancellations to flights that have been caused by bird strikes. In the UK, the local county courts have been ruling that bird strikes are not extraordinary circumstances under Regulation 261/2004. Whilst not binding in nature, the effect of these county court judgments, together with the limited scope of the extraordinary circumstances defence, has put increased pressure on the industry. It is no surprise, therefore, that the industry has been eagerly awaiting the outcome of a referral to the CJEU which has sought clarification on whether a bird strike is an extraordinary circumstance for the purpose of Regulation 261/2004.

We can confirm that the CJEU has today held that bird strikes are extraordinary circumstances for the purpose of defending claims brought under Regulation 261/2004. As part of its rationale, the CJEU confirmed that a collision between an aircraft and a bird, together with any resulting damage, is neither intrinsically linked to an aircraft’s operating system nor inherent in a carrier’s normal activities. In the light of this judgment, a carrier can avoid liability if it can collectively show that a cancellation or delay of three hours or more on arrival was caused by an extraordinary circumstance (in this case a bird strike), which could not have been avoided even if all reasonable measures were taken; and that all necessary measures were taken to prevent the occurrence, without making intolerable sacrifices.

Other key points to take from this judgment:

Follow up safety checks need to be commensurate to the damage caused – in this case the aircraft was checked twice following the collision, both times by authorised experts who confirmed that the aircraft was airworthy. The CJEU has held that the second check caused further unnecessary delay; and
Where more than one circumstance causes a significant delay to a flight, a carrier will be able to deduct the delay time attributable to an extraordinary circumstance from the overall delay before assessing the total delay on arrival. Compensation will only be payable after such deduction if the remaining delay time exceeds three hours on arrival.

The judgment is currently not available, but will be released on the Curia website in due course.